Many Canadians, as well as nationals from foreign countries around the world, have been unpleasantly surprised when they are refused entry into the United States because of a criminal conviction that may be decades old. The denial of admission may come after many successful admissions into the U.S., and is due to increased data sharing between enforcement agencies of the two countries.
Fortunately for most Canadians, there is a straightforward process for obtaining a waiver (a sort of pardon) for a criminal conviction or an outstanding arrest warrant, for instance. Any outstanding arrest warrant must be cleared up before a waiver will be granted.
At the U.S. border, the officers of the Customs and Border Patrol (CBP) are trained to look for seven grounds of inadmissibility:
1. Conviction of any offense “relating to” controlled substances;
2. Conviction of a single moral turpitude offense (as defined below) unless the offense comes within an exception:
• The petty offense exception applies if the noncitizen committed only one moral turpitude offense that carries a potential sentence of a year or less and a sentence of six months or less was actually imposed; or
• The youthful offender exception applies if the noncitizen committed only one moral turpitude offense while under the age of 18, and five years has passed since conviction (in adult court) or release from resulting imprisonment;
3. Formal admission of controlled substance or moral turpitude offense (no conviction is required, but where the charge was resolved in criminal court as less than a conviction the ground does not apply; this ground does not often come up);
4. Person is a current drug abuser or addict (conviction not required);
5. Government has “reason to believe” the person has ever been or assisted a drug trafficker (conviction not required);
6. Person has engaged in prostitution or commercialized vice (conviction not required);
7. Two or more criminal convictions of any kind where an aggregate sentence of five years or more was imposed.
Crimes involving moral turpitude include murder, manslaughter, rape, theft, bribery, forgery, aggravated battery, prostitution, and fraud. It is interesting to note that driving under the influence, breaking and entering, disorderly conduct, and simple assault are not grounds to deny entry into the U.S.
Please note that if you are found inadmissible at the border under INA (Immigration and Nationality Act)
Section 212(a)(6)(C)(i) for fraud or material representation, you will be
permanently barred from entering the U.S. unless you obtain a waiver of
inadmissibility.
If a CBP officer at the border finds that one or more of the INA grounds of inadmissibility applies, the officer may recommend that the applicant seek a waiver of inadmissibility (form I-192). The waiver can be obtained through preclearance at the Vancouver International Airport or at other locations. An Admissibility Review Officer (ARO) will consider the following three factors in deciding whether or not to grant an application for an I-192 waiver:
1. the risk of harm to society if the applicant is admitted;
2. the seriousness of the applicant’s prior immigration law, or criminal law, violations, if any;
3. the nature of the applicant’s reasons for wishing to enter the United States.
The processing times for the waiver varies from case to case, generally taking at least 3 to 4 months for the first waiver. The first waiver is usually for one year. Each subsequent waiver is good for a maximum of five years at a time.
If an application for a waiver is denied once, it will likely be denied again and again, unless the facts of the case have changed significantly. This makes it essential that the applicant seek legal advice from a U.S. immigration lawyer before submitting any applications to the U.S. Government.
Kathleen Lord-Black
U.S. Immigration Lawyer
Vancouver, BC, Canada
tel:(360) 329-2436 (U.S.) and (604) 352-2006 (Canada)
www.immigration-etats-unis.com
